Richard Ekins and Guglielmo Verdirame: The Ministerial Code and the Rule of Law

The Prime Minister has changed the Ministerial Code. The Code had said that it ‘should be read [against] the background of the overarching duty on Ministers to comply with the law including international law and treaty obligations’. The Code now says that it ‘should be read against the background of the overarching duty on Ministers to comply with the law’.

This change – the excision of these six words – has caused outrage on the part of certain lawyers. But their critique is largely misconceived and the response of some – initiating legal proceedings against the Government – itself suggests a skewed understanding of our constitution.

Their criticism, in a nutshell, is that, by removing the reference to international law and treaty obligations, the updated Ministerial Code shows contempt for the rule of (international) law.

Paul Jenkins (Treasury Solicitor from 2006-2014) stated candidly in Monday’s Guardian that he “saw at close hand from 2010 onwards the intense irritation these words caused the PM as he sought to avoid complying with our international legal obligations, for example in relation to prisoner voting”. He concluded that the revised Code would bolster ministers’ “contempt for the rule of international law”. On the other hand, the Cabinet Office is reported as saying – implausibly it seems to us – that the change was merely a simplification of wording.

Was the PM right to be irritated? Or has this change made the UK a rogue state, ready to flout the rule of law?

The rule of international law is not a simple idea. Just think of the concepts most closely associated with the rule of law in other legal traditions: Rechtstaat, Etat de droit, Stato di diritto, etc. The term ‘state’ is central to each. The principle of the rule of law is intimately connected to the institution of the state. Not for nothing has international law historically used a different formulation to capture the importance of legal obligations: pacta sunt servanda (agreements must be kept).

The jurisprudential difficulties of working out how the rule of law applies in an international context are as formidable as they are neglected.

The relationship between domestic law and international law is no less complicated. The UK is normally described as a dualist country, where international legal obligations cannot become part of domestic law unless introduced into the legal system. Dualist countries are routinely contrasted with ‘monist’ countries where – it is said – international law is applied directly.

The distinction is somewhat overstated: international law enters domestic law in different ways across legal systems and in some cases may not enter at all. The main question, however, is what happens in the event of conflict between a rule of international law and a rule of domestic law. Again, answers vary from one legal system to the other. But no major country in the world places international law (including unincorporated treaties) above the constitution. While some countries may be more open than others to international law, every country is ultimately dualist.

It is no affront to the rule of law, therefore, for the UK to privilege its constitutional law in the event of a divergence between national law and international law. All major democracies would do the same.

Although the new Ministerial Code may have chosen too succinct a formulation to clarify the relationship between the two, the old Ministerial Code also risked misunderstanding. Ministers have never been under a general legal duty to comply with international law including treaty obligations. The subject of any such duty is the UK itself.

There are good reasons of democratic principle why, consistent with respect for the rule of law, the constitutional law and practice of the UK should not give direct domestic effect to international legal obligations and oblige Ministers to conform to them.

Consider prisoner voting. Should the Prime Minister have understood himself to be constitutionally obliged to take measures to comply with the ECtHR’s (foolish) prisoner voting ruling? No: he and his Cabinet colleagues thought the ruling was wrong, on the merits and in law, and the Commons (and the public) clearly agreed. The Prime Minister did not act unconstitutionally in failing to propose legislation to comply with the ECtHR’s ruling and every public official in the UK, including Ministers, should continue to respect the law of the land and act contrary to that ruling until and unless our sovereign Parliament decides to change the law”.

Ministers (and legislators and voters) should think carefully about the UK’s international legal obligations and should generally avoid conduct that would place the UK in breach of those obligations. But it is wrong for Ministers to be required to treat international legal obligations, including unincorporated treaties, as of equal standing to Acts of Parliament or common law duties. Even EU law would have to give way to constitutional principles – as the Supreme Court indicated in the HS2 case.

Rights Watch has said that it is initiating proceedings against the Government in relation to the change made to the Ministerial Code. Presumably they seek a declaration that the change was unlawful or that Ministers are under a duty to comply with international law. It is not easy to see how such an application would be framed but it bears saying that the very making of the application is problematic. Constitutional conventions are not, and should not, be subject to judicial control. If the Prime Minister’s updating of the Code is thought problematic, the proper remedy is public criticism and parliamentary accountability, not an application for judicial review (as observed by Sir Frank Berman QC).

Any well-advised court should reject the application out of hand. But the rush to apply for such judicial control, as well as the assumption that international law should take precedence over constitutional law, tells us much – and none of it good – about modern legal thinking.